Citation NR: 9704770
Decision Date: 02/11/97 Archive Date: 02/19/97
DOCKET NO. 95-07 110 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased (compensable) evaluation for
chronic sinusitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Jennifer Lane, Counsel
INTRODUCTION
The veteran had active service from May 1970 to December 1971
and May 1974 to October 1992.
The appeal arises from a rating decision dated in January
1994 in which the Regional Office (RO) granted service
connection for metatarsalgia of the left foot and assigned a
10 percent evaluation for that disability. The RO also
granted service connection for chronic sinusitis, scar on the
right elbow with history of removal of bone chips and
splinters, fracture of the right thumb, and hemorrhoids, and
found that each of those disabilities was noncompensably
disabling. Additionally, the RO denied service connection
for tendonitis of the left knee, fracture of the left tibia,
lumbar strain, allergic rhinitis, lump on the left side of
the neck, right ankle sprain, myopic astigmatism, fracture of
the left second toe, and positive purified protein derivative
(PPD) test. The RO also deferred the issue of entitlement to
service connection for post-traumatic stress disorder pending
a VA examination. The veteran filed a notice of disagreement
in February 1994 with the issues of entitlement to an
increased evaluation for sinusitis and service connection for
disabilities involving the left knee, left tibia, low back,
neck, right ankle, eyes, and left second toe, rhinitis, and
the positive PPD test result; and he subsequently perfected
an appeal of the issue of entitlement to an increased
evaluation for sinusitis. In a November 1994 rating
decision, the RO granted service connection for post-
traumatic stress disorder and assigned a 10 percent
evaluation for that disorder, effective in November 1992.
The RO sent a letter notifying the veteran of the decision
regarding post-traumatic stress disorder and of his right to
appeal said decision, in December 1994; but, the veteran has
not submitted a notice of disagreement with that
determination.
The veteran also appeared at a hearing held before a member
of the Board of Veterans' Appeals (Board) at the RO in
October 1996. At the hearing, the veteran withdrew the
appeal of the claims regarding tendinitis of the left knee,
fracture of the left tibia, lumbar strain, allergic rhinitis,
lump on the left side of the neck, right ankle sprain, myopic
astigmatism, fracture of the left second toe, and positive
PPD test. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R.
§§ 20.200, 20.201, 20.202, 20.204, 20.302 (1995).
Also, in February 1994, the veteran filed a claim for
entitlement to service connection for a rash on his face,
hands, scalp, and arms due to exposure to Agent Orange while
in Vietnam. As such issue is not inextricably intertwined
with the issue on appeal, the matter is referred to the RO
for appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that a 30 percent evaluation
is warranted for sinusitis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the record supports the claim
for entitlement to an increased evaluation for chronic
sinusitis.
FINDINGS OF FACT
1. All relevant information necessary for an equitable
disposition of the appeal has been developed.
2. Chronic sinusitis is productive of severe symptoms,
including frequent headaches, discharge, and crusting.
CONCLUSION OF LAW
The criteria for a 30 percent evaluation for chronic
sinusitis are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 4.2, 4.7, 4.10, Part 4, Diagnostic Codes 6513-
6514 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds that the claim for entitlement to an
increased evaluation for chronic sinusitis is well-grounded
within the meaning of 38 U.S.C.A. § 5107, that is, the claim
is plausible, meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990).
The Board further finds that the Department of Veterans
Affairs (VA) has met its duty to assist in developing the
facts pertinent to the veteran's claim. 38 U.S.C.A. § 5107.
Disability ratings are based on schedular requirements which
reflect the average impairment of earning capacity occasioned
by the state of a disorder. 38 U.S.C.A. § 1155. Separate
rating codes identify the various disabilities. 38 C.F.R.
Part 4. In determining the level of impairment, the
disability must be considered in the context of the whole
recorded history, including service medical records. 38
C.F.R. § 4.2. An evaluation of the level of disability
present must also include consideration of the functional
impairment of the veteran's ability to engage in ordinary
activities, including employment, and the effect of pain on
the functional abilities. 38 C.F.R. § 4.10. Also, where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The Board notes that the service medical records show that
the veteran was treated for sinusitis on many occasions while
in service; and, as noted above, the RO granted service
connection for chronic sinusitis effective the day after the
veteran was separated from service. 38 C.F.R. Part 4.
The Board also notes that the criteria for evaluating the
severity of sinusitis were recently changed. Where a law or
regulation changes after a claim has been filed or reopened
but before the administrative or judicial appeal process has
been concluded, the version most favorable to an appellant
applies. Review of the record discloses that the regulations
in effect when the veteran filed the current claim for
entitlement to an increased evaluation for sinusitis are more
favorable to him than the new regulations. Therefore, the
earlier regulations must be applied in evaluating the
veteran's current claim. See Karnas v. Derwinski, 1 Vet.App.
308, 313 (1991).
The veteran’s chronic sinusitis is evaluated under the
provisions of Diagnostic Code 6514. 38 C.F.R. Part 4,
Diagnostic Code 6513. X-ray manifestations only, mild or
occasional symptoms, warrant a noncompensable evaluation;
moderate disability, with discharge or crusting or scabbing,
infrequent headaches warrants a 10 percent evaluation; severe
disability, with frequently incapacitating recurrences,
severe and frequent headaches, purulent discharge or crusting
reflecting purulence warrants a 30 percent evaluation; and
postoperative, following radical operation, with chronic
osteomyelitis requiring repeated curettage, or severe
symptoms after repeated operations warrants a 50 percent
evaluation. 38 C.F.R. Part 4, Diagnostic Code 6514 (1995).
At a VA general medical examination in August 1993, the
veteran indicated that he had undergone a bilateral sinus
procedure since service, when he sought treatment for a
severe sinus infection, and that his symptoms had improved
after that procedure. However, at the Board hearing, the
veteran testified that the symptoms which the procedure had
relieved had returned. According to his testimony, he
experienced dull constant sinus headaches everyday,
congestion, crusting, and discharge; and the Board found the
veteran’s testimony at the October 1996 hearing credible and
probative, particularly when viewed in conjunction with the
effective presentation provided by the accredited
representative.
Thus, in light of the veteran’s credible hearing testimony, a
case could be made for a finding at this time that the
evidence is, at least, in equipoise as to whether there is a
reasonable basis for concluding that the veteran’s sinusitis
is productive of severe symptoms; and to conclude otherwise,
in the view of this Board member, would be a finding that
would not withstand scrutiny by the United States Court of
Veterans Appeals (Court) on the basis of the evidence
currently of record. Moreover, it is felt that to further
delay reaching a final decision in this case in order to
afford the veteran another VA examination would not be in his
best interests, especially as the veteran is not seeking an
evaluation in excess of 30 percent for the disability in
question. Therefore, resolving doubt in the veteran's favor,
the Board finds that the criteria for a 30 percent evaluation
for chronic sinusitis are met. 38 U.S.C.A. § 5107(b);
38 C.F.R. § 4.7, Part 4, Diagnostic Codes 6513-6514 (1995).
As noted above, the veteran is specifically requesting a 30
percent evaluation for his service-connected sinusitis. At
the Board hearing in October 1996, the veteran and his
representative indicated that he did not wish to pursue a
claim for entitlement to an evaluation in excess of 30
percent for the disability at issue. Therefore, the Board
need not address whether a higher schedular or extra-
schedular evaluation is warranted. See AB v. Brown, 6
Vet.App. 35, 38 (1993); Floyd v. Brown, 9 Vet. App. 88
(1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995);
38 C.F.R. § 3.321(b)(1).
ORDER
A 30 percent evaluation for chronic sinusitis is granted,
subject to the provisions governing the award of monetary
benefits.
JEFF MARTIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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